RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 July 2006
      DOCKET NUMBER:  AR20050015151


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick H. McGann Jr.         |     |Member               |
|     |Ms. Ernestine I. Fields           |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his reentry (RE) code of RE-4,
and his Separation Program Designator (SPD) code of KFS be changed to codes
which would allow him to reenlist.

2.  The applicant states, in effect, that while he was at the Personnel
Control Facility, Fort Knox, Kentucky, he was told that in order to reenter
the military he would have to wait at least one and a half years to become
eligible.  The applicant continues by stating that he went to see a
recruiter, and he was told that his separation code will need to be
upgraded before he can apply to reenter the military.

3.  The applicant provides:

      a.  a copy of his DD Form 214 (Certificate of Release or Discharge
from Active Duty); and

      b.  a copy of his self-authored statement in which he alluded to the
fact that his father was very ill with liver cancer, and his father was
dying during the period of his basic combat training.  He also states, in
effect, that he was not mature enough to deal with his father's condition,
so he went absent without leave (AWOL) to be with his father.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 January 2002, the date of his discharge from active
duty.  The application submitted in this case is dated 9 September 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 28 October 1998.  On  
1 November 1998, the applicant went AWOL, and remained so until 5 November
2000, for a total of 735 days.
4.  On 5 November 2000, the applicant was returned to military control at
Raleigh, North Carolina.  Record shows that on 8 November 2000, he was
assigned to Special Processing Company, Fort Knox, Kentucky.

5.  On 10 January 2002, the applicant was discharged from active duty in
lieu of trial by court-martial for the good of the service, in accordance
with Army Regulation 635-200, Chapter 10.  He was assigned an SPD code of
KFS and assigned an RE code of RE-4.  According to his DD Form 214, he had
completed 1 year, 1 month, and 28 days of active service.

6.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment
Program), covers eligibility criteria, policies, procedures for enlistment,
processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3,
of that regulation prescribes basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of Armed Forces RE
codes, including Regular Army RE codes.

7.  Table 3-1 (U.S. Army reentry eligibility codes), of Army Regulation  
601-210 states that RE-4 applies to persons separated from last period of
service with a non-waivable disqualification.

8.  AR 635-5-1 (Separation Program Designated Codes), Table 2-3, states
that SPD KFS denotes voluntary discharge, in lieu of trial by court-
martial.

9.  The Army Human Resources Command publishes a cross-reference of SPD and
RE codes.  This cross-reference shows KFS is assigned an RE code of  
RE-4.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic
authority for the separation of enlisted personnel.  Chapter 10 of that
regulation provides, in pertinent part, that a member who has committed an
offense or offenses for which the authorized punishment includes a punitive
discharge may submit a request for discharge for the good of the service in
lieu of trial by court-martial.  The request may be submitted at any time
after charges have been preferred and must include the individual's
admission of guilt.  Although an honorable or general discharge is
authorized, a discharge under other than honorable conditions is normally
considered appropriate.





DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his SPD code of KFS and RE code of RE-4 be
changed, so that he may reenter the military.

2.  There is no evidence or indication that there was an error or
injustice, which caused the applicant to be discharged in lieu of trial by
court-martial, nor has the applicant contended that there was an error or
injustice in his discharge.

3.  There is no evidence that shows the applicant was notified by the
American Red Cross that his father was dying.  In view of this fact, the
applicant's contention that he went AWOL because of his father's health is
not accepted.

4.  Since the applicant was properly discharged, there is no reason to
change a correctly assigned RE code.

5.  The applicant's contention that he was told he could reenlist in one
and a half years after his discharge is not supported by the evidence of
record.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 January 2002; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
9 January 2005.  The applicant did not file within  the  3-year  statute  of
limitations and has not provided a compelling  explanation  or  evidence  to
show that it would be in the  interest  of  justice  to  excuse  failure  to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___le____  ___phm_  ____eif___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.
2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ________Lester Echols_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015151                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060718                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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